R v WS

District Court of NSW|2021-03-12|Before: Mr P

Pursuant to s 578(2) of the Crimes Act 1900, any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant is not to be published.

Judgment

The offender comes before the Court for sentence having been found guilty by a jury of counts 2 and 4 on the indictment. He was found not guilty of counts 1 and 3.
The offences for which he has been found guilty are historical offences, and are as follows: 1. Count 2: Between 1 September 1990 and 10 November 1990 at Sadleir in NSW, he did assault KS and at the time of the assault committed an act of indecency with KS ("indecent assault"), contrary to s 61E(1) of the Crimes Act 1900 ("Crimes Act"), carrying a maximum penalty of 4 years' imprisonment; and 2. Count 4: Between 1 September 1990 and 10 November 1990 at Sadleir in NSW, he did have sexual intercourse with KS without her consent and knowing that KS had not consented to the sexual intercourse ("sexual intercourse without consent"), contrary to s 61D(1) of the Crimes Act.
Following the jury verdicts, I entered convictions accordingly.
There is a dispute as to the maximum penalty applicable for count 4, to which I will return.
Neither offence carried a standard non-parole period.

Background

The offender, WS, was born in January 1972. The victim is KS, who was born in October 1974. The victim is the biological sister of the offender. The offender and victim lived with their father, mother, and three other siblings in a house located in Sadleir from July 1975 until sometime after November 1990.
During the victim's childhood, neither of her parents worked, and both were alcoholics. There was little supervision of any of the children as they grew up. There would often be no food provided for the children. The victim attended a nearby high school from year 7 (in 1987) to year 11 (in 1991).
There was substantial agreement between the parties as to the facts which should be attributable to the jury verdicts, though there remain three areas of dispute. These are: 1. The age of the victim at the date of the offences; 2. Whether the context evidence of other uncharged sexual acts is established to the appropriate standard; and 3. Whether, after the acts constituting count 4, the offender threatened victim with a knife.
I shall return to these issues.

Agreed Facts

The following are facts which I did not understand to be in dispute, though I should add that the extent of the agreement was not as clear as one would hope. To the extent therefore that any of the facts which I set out below are said not to be agreed, I find them, and to the extent to which they may not be agreed, and are adverse to the interests of the offender, I find them beyond reasonable doubt.
Subject to that caveat the agreed facts are as follow.

Count 2

At the time of both offences the victim was sitting her Year 10 examinations. At around 12:00pm, the victim returned home from school for lunch after completing her morning examination. She was wearing her school uniform.
When the victim arrived home, the offender was at home. Nobody else was at home. The victim went to the toilet. When she came out of the toilet, the offender grabbed her from behind and dragged her into his bedroom. The offender started kissing her.
The offender then removed the victim's clothes. The victim could see that the offender's penis was erect. He grabbed her head and pulled it down towards his penis. The victim tried to pull her head away, but the offender physically held her head and would not let her go. He forced her to lick his penis.

Count 4

The offender then pushed the victim onto his bed. He pinned her down with his legs so that she could not move. He put his erect penis inside her vagina. He then proceeded to have non-consensual penile-vaginal intercourse with her. The offender did not use a condom. He stopped after ejaculating inside the victim.
The offender eventually let the victim up. She got dressed and ran down to a local hotel to tell her parents what had occurred. She was crying. One or other of her parents said to her: "Go home. I'm not going to be bothered with it".
The victim then went to her family doctor, Dr Bright, as she was worried about the possibility of either pregnancy, or of having contracted a sexually transmissible disease. She told Dr Bright that the offender had sexually assaulted her. He told her that she would need to have a sexual disease test and a pregnancy test. Medicare records confirm that the victim undertook that pregnancy test on 16 November 1990.

Disputed Facts

I turn then to the disputed facts which I am required to find. As the authorities make clear, I must form my own view of these facts, but I must ensure that in so doing my conclusions are not inconsistent with the jury's verdicts (Savvas v The Queen (1995) 183 CLR 1 at [8]; R v Isaacs (1997) 41 NSWLR 374 at [377]-[378]). In such a fact-finding exercise it is also necessary to ensure that facts which are proposed to be found, and which are adverse to the offender's interests, are established beyond reasonable doubt.
I shall return to this issue later in these reasons, as this proposition in its application to the facts in this matter, was to some extent put in dispute by the Crown.

The age of the victim at the date of the offences

The indictment avers that the offending occurred between 1 September 1990 and 10 November 1990. The Crown, however, asserts that the jury should be taken to have determined that the offences were committed on either of 6, 7, or 10 September 1990. The importance of this issue is that the victim turned 16 years of age in October 1974. Thus, if the Crown's contention is correct, then the victim was 15 at the time the offending, and the maximum penalty for the offending in relation to count 4 would be 10 years. If, on the other hand, the victim was over 16 at the date of the offences, then the maximum penalty would be eight years imprisonment.
The offender's contention in this regard is that it is not open for the Crown to allege that the victim was under 16, as this fact was never particularised in the indictment. It was submitted by the offender that the jury was asked to merely determine whether the offences occurred within the date range as averred in the indictment, as such it was submitted that there is no room for the contention that the jury should be taken to have found that the victim was under 16 at the date of the offending. The argument proceeded that accordingly there was no need to make a finding as to the victim's age, which in any event would have to be established beyond reasonable doubt.
The Crown submitted that the age of the victim was not an element of the offence created by section 61D(1). The issue of the victim's age, it was submitted, only goes to the maximum penalty applicable, and thus only arises for consideration after the essential elements of the offence on the indictment had been proven beyond reasonable doubt. In this regard, the Crown submitted that the particulars do not constitute elements of an offence and are not to be treated as part of the indictment (Gregg v The Queen [2020] NSWCCA 245 at [395] per Bathurst CJ (Hoeben CJ at CL and Leeming JA agreeing), citing Saffron v The Queen (1988) 17 NSWLR 395 per Hunt AJA).
I accept the Crown's contentions, being as they are consistent with High Court authority (The Queen v Meaton (1986) 160 CLR 359 at p 367; Keung v The Queen [2008] NSWCCA 193 at [25]-[31]).
It seems to me that a necessary corollary of this conclusion, is that as the particulars as to the dates of the offences are not essential elements of the offending, there is no finding as to this matter which must be attributed to the jury. This conclusion in turn requires me to determine the factual issue involved.
The Crown pointed to the evidence of the victim that, having reported the assault to her parents, who were at the time at the local hotel, and following being told by her parents to effectively let the matter lie, she soon after, on that day, attended on the family's general practitioner, Dr Bright.
The victim's account was that the day on which counts 2 and 4 occurred was a school day, and she had been sitting an examination in the morning prior to coming home. She was adamant that she had attended on Dr Bright on that day.
In the Crown case, Medicare records were produced to show all visits by the victim to medical general practitioners during the indictment date range (Exhibit C3). These Medicare records showed that the victim had only visited Dr Bright on three occasions during the date range on the indictment, those dates being 6, 7, and 10 September 1990. These occasions preceded a pregnancy test on 16 November 1990. Also tendered by the Crown was a calendar for the year 1990 (Exhibit C4). Exhibit C4 showed that each of the dates upon which the victim attended on Dr Bright, namely, 6, 7, and 10 September 1990, was a school day.
In my view, the evidence of the victim as to the fact of the offending occurring on a school day, and on a day upon which she attended on Dr Bright, is corroborated by the objective evidence, being the Medicare business records, and the calendar. This objective evidence, dovetailing as it does with the victim's evidence, allows me to find that the evidence establishes beyond reasonable doubt that the offending occurred in September 1990, when the victim was under 16 years of age.
This conclusion in turn leads to the result that the maximum penalty for count 4 is 10 years imprisonment.

Has the Crown established that the context evidence of uncharged sexual acts occurred to the relevantly applicable standard?

The Crown alleged that in addition to the offences the subject of the indictment the offender would also sexually touch the victim in the lounge room of the family home. This conduct, she alleges, started from when she was 12 years of age. Her evidence was that the offender would sit next to the her on the lounge while she was watching television. She says that the offender would place a blanket over her legs to conceal his actions, and proceed to fondle her, including spreading her legs open and putting his fingers inside her vagina. This kind of touching she asserted would occur nearly every day. The touching, according to the victim's evidence, often occurred in the presence of other family members, who were also watching TV.
In addition, while living at Sadleir, the father of both the victim and the offender ran a hobby business repairing lawnmowers. There was some evidence that he would keep some lawnmower spare parts under the house. The house, I should add, was constructed on stilts sufficiently high to enable persons to walk under and access the parts. The children would apparently assist their father in getting parts from under the house.
The victim's evidence was that the offender would ask the victim to go with him under the house to find lawnmower parts and, while under the house, that he would do things to her, including putting his hand down her blouse. She says that this would occur almost every second day.
The victim's evidence in relation to the uncharged acts painted a picture of virtually daily sexual abuse of her by the offender from age 12, to which the rest of the family, being aware of the conduct, simply turned a blind eye. This evidence was not supported by two of the victim's siblings who were called to give evidence. Both denied ever seeing any form of sexually inappropriate conduct by the offender to the victim, and also denied that such allegations were discussed within the family. The victim's siblings were, in their different ways, impressive witnesses, who were not shaken in cross-examination, and I accept them.
I find that the victim's evidence in relation to the uncharged acts, especially those alleged to have been daily committed in the family lounge room, to be inherently improbable, and the proposition that she was, on average, abused by her brother under the house every second day, to be difficult to believe. This is so even before the evidence from her siblings was taken into account.
When the siblings' evidence is was taken into account, however, I comfortably conclude that the Crown has not established that the uncharged acts occurred beyond reasonable doubt.
The Crown, in submissions in reply, suggested that the uncharged acts did not need to be established beyond reasonable doubt.
The argument proceeded that a finding that the uncharged acts occurred need only be made on the balance of probabilities. This, it was suggested, was a conclusion that flowed from the fact that the uncharged acts only went to a matter of possible mitigation, as distinct from a matter of possible aggravation.
In this regard, the Crown submitted that the existence of the uncharged acts did no more than merely deny the offender the benefit of potentially mitigating facts that: 1. The offending was opportunistic or spontaneous; and 2. That prior to the offending, the offender was a person of good character.
In advancing this contention, the Crown submitted that R v Olbrich (1999) CLR 270 stood for the proposition that aggravating factors only needed to be established beyond reasonable doubt, while mitigating factors needed to be established on the balance of probabilities (Crown Further Submissions in Reply [5]).
I do not accept that this is a correct analysis of what was decided by the High Court in Olbrich. What the Court actually stated in the paragraphs relied upon by the Crown ([27]-[28]) was that facts "adverse to the interests" of the offender must be established beyond reasonable doubt, while facts in favour of the offender need only to be established on the balance of probabilities.
In my view, here the Crown relies on the uncharged acts to negative a potential mitigating factor, as such, it seeks a factual determination adverse to the interest of the offender. Accordingly, in my opinion, it is necessary for the Crown to establish the negating facts adverse to the offender's interests beyond reasonable doubt.
It has not done so.
I should add that if I am wrong in this conclusion, I would have found that the uncharged acts had not been established on the balance of probabilities.

Has the Crown has established beyond reasonable doubt that, after the acts constituting count 4, the offender threatened victim with a knife?

The Crown's case is that following the acts constituting count 4, the offender produced a knife from his bedside table, and threatened the victim with it.
Strictly speaking, if the knife was used, as alleged, this act did not form part of the elements of the offence for which the offender has been convicted.
As such, therefore, it may be thought arguable that there has been no finding to be attributed to the jury in relation to the use of a knife by the offender. It seems to me, however, that the better view is the contrary view, namely that the jury obviously accepted the victim's evidence had established the elements constituting counts 2 and 4, and found them to be established accordingly beyond reasonable doubt. Thus, as the issue of the knife forms an integral part of the res gestae of the count 4 offence for which the offender has been found guilty, a finding as to it should properly be attributed to the jury as also being established beyond reasonable doubt.
I so find.

Objective Seriousness

The Crown asserted that count 2 should be adjudged to be within the midrange of objective seriousness, and that count 4 was to be considered as above the midrange.

Aggravating Factors

In its oral submissions, the Crown explained that its position in relation to the objective seriousness of the offences was due to the presence of what it alleged were aggravating factors. The aggravating factors to which the Crown referred were: 1. That the offending occurred in the victim's home; 2. That the victim was vulnerable as the offender was her brother and she was alone with him; and 3. In relation to Count 4, that the knife was used.

Whether the use of the knife is an aggravating factor

My factual finding in relation to the knife issue leaves open its possible consideration as an aggravating factor. In this regard, it is noteworthy that s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") draws attention to the fact that "the offence involved the actual or threatened use of a weapon". On one view of it, the use of the knife occurred after the offences had been committed. As I will later explain, however, the items on s 21A(2) are not a checklist, and the task of the sentencing judge is to ascertain whether the relevant allegedly aggravating factors are aggravating, in fact, in the circumstances of the case.
In my view, in the circumstances of this case, the use of the knife was an aggravating factor in the offending, and I shall take it into account accordingly.

Whether the fact that the offending occurred in the home is an aggravating factor

The offences undoubtably occurred in the victim's home, where, as the authorities make clear, she was entitled to feel safe. This is a potentially available aggravating factor (s 21A(2)(eb) of the Sentencing Act). The fact is, however, that the residence was also the offender's home. I am aware of a line of authority that provides that this fact, in and of itself, does not necessarily detract from the force of the factor as being an aggravating one. That said, and as foreshadowed, the authorities make clear that section 21A(2) of the Sentencing Act do not operate as checklist, but rather the task of the sentencing judge is to consider whether any particular potentially aggravating factor is aggravating in fact in the circumstances of the particular case (R v Wickham [2004] NSWCCA 193; R v Lilley (2004) 150 A Crim R 591 at [41], [53]; R v King (2004) 150 A Crim R 409 at [139]-[141]).
In the instant case, I consider that the fact that the victim and the offender were siblings who lived in the same house, and were still relatively young (the victim being aged 15 approaching 16, and the offender aged 18, respectively), serves to detract from the fact that the offending occurred in the home as having any significant aggravating quality.
I am also of the view that the vulnerability of the victim that arose from the victim being alone with her brother is, for similar reasons, not an aggravating factor in reality in the circumstances of this case.

Mitigating Factors

The offender referred to the following as mitigating factors.

That the offence was not part of a planned or organised criminal activity.

In that regard, the offender submitted that he could not have known that the victim was going to be home for lunch between her morning and afternoon examinations. In the offender's submission, the offence ought to be considered as an opportunistic one.
The Crown's contention in respect to this submission was that, reliant on the uncharged acts, the offending should not be seen to be opportunistic. As I have previously explained, I do not consider that the uncharged acts were established beyond reasonable doubt (or indeed on the balance of probabilities), and as such, I do not accept the Crown's submission.
On the contrary, I accept the offender's submission on this issue.

That the offender has no prior convictions.

At the date of the offending this is undoubtedly true, and the factor is not, to my mind, in any way to be diminished by the fact that later in life he has been convicted of criminal offences.
I propose to take this matter into account as a mitigating factor.

That, prior to the offending, the offender was a person of good character.

The Crown sought to negative this factor by reference to the uncharged acts. As I have previously found that the uncharged acts were not proved beyond reasonable doubt, then there is no reason to suggest that the submission as to the offender's good character prior to the offending is other than a good one.
I accept it and will proceed to sentence accordingly.

That the offender is unlikely to re-offend.

These offences, as I have indicated, occurred some 30 years ago. The offender submitted that while he does have subsequent convictions for other forms of offending, there are no convictions for offences of a sexual nature. This, it was submitted, points to the fact that he is unlikely to commit a sexual offence in the future.
I shall return to this issue later in these reasons.

Conclusion on Objective Seriousness

Taking all of these matters into account, and acknowledging the importance of general deterrence in relation to offending of this nature, I find that the objective seriousness of both offences is to be regarded as below the midrange, though in relation to count 4, less so than count 2.

The Offender's Subjective Circumstances

The offender is a man now aged 49. As I have indicated, at the time of the offending he was 18 years of age. He has never married. He is the product of a difficult upbringing involving the alcoholism in both of his parents, lack of parental supervision, and childhood financial stress.
The offender admitted to Dr Smith, a forensic psychiatrist who provided a report at his request, that he had long standing a problem with alcohol. As I have earlier indicated, he has criminal record. This criminal record primarily involves offences of violence, which offences seem to have occurred when the offender was under the influence of alcohol.
As I have earlier indicated, the offender's criminal history involves no offences of a sexual nature. This fact, however, does not lead to a conclusion that his subsequent criminal history is irrelevant; it may, for example, go to the issues of his risk of reoffending, and his prospects of rehabilitation.
Dr Smith opined that the offender may suffer from a form of intellectual disability. It was not suggested however that this disability, later described as "borderline or mild intellectual disability", may have been causative of his offending. Nor was it put that it went in a material way to lower the moral culpability of the offender. While I appreciated the assistance provided by his psychiatric report, I do not consider that Dr Smith's opinion was of any particular importance in the sentencing task which confronts me.
The offender continues to deny that he is guilty of the offences which bring him before the Court. This self-evidently does not entitle him to any leniency on the grounds of contrition, by the same token it does not increase the severity of any sentence which may be imposed. The issue of contrition is also potentially relevant to issues of the offender's prospects rehabilitation and risk of reoffending.
In a sentencing assessment report obtained in relation to the current offences, the offender was assessed as having a medium risk of reoffending. That sentencing assessment report, however, was clearly prepared with an eye towards the offender's criminal history of alcohol fuelled assaults. While the report does canvass the preparedness of the offender to undertake sexual offending courses, its conclusion is ambivalent, leaving me with the impression that he is only prepared to undertake such courses, to quote the report, if it "kept him out of jail". This of course is consistent with the maintenance of his innocence, which is his entitlement.
The issue of the offender's risk of reoffending, to my mind, in relation to the offences which bring him before the Court, should be restricted to his risk of sexual reoffending. So confined it seems to me that the unavoidable conclusion is that this incident was an isolated one, and that he has demonstrated no sexual reoffending in the intervening 30 years.
I find the offender's risk of sexual reoffending to be low, and that his need for sexual offence rehabilitation to be also low.

Special Circumstances

The offender suggested that the following were special circumstances, which were appropriate to be brought into consideration pursuant to the provisions of section 44(2) of the Sentencing Act. These were: 1. That he had no prior convictions (at the date the offences were committed); 2. That this will be the first time that a term of imprisonment has been imposed on him; 3. That the offender is at present subject to various supervisory orders, with which he is complying; 4. That additional support and guidance from Community Corrections would be of assistance to him once he is released from custody; and 5. That would be to the benefit of both the offender and the community if special circumstances are found such that he had a longer period in the community under corrective services' supervision.
This lengthier period of parole, it was submitted, would allow the offender to be supervised by community corrections officer, and would have the benefit of the offender having additional counselling for his various issues such as: 1. Alcohol use/abuse; 2. Anger management; and 3. Relationship counselling.
The Crown, fairly, did not put these special circumstances in issue. I accept that such special circumstances are appropriate to be brought into consideration, and shall proceed to sentence accordingly.

Gaol the only Appropriate Punishment

It was common ground between the parties that gaol was the only appropriate punishment. This could hardly be gainsaid, and I unhesitatingly accept that this is the case, and so find for the purposes of s 5 of the Sentencing Act.

Aggregate Sentence

I propose to deal with this matter by way of an aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrence, and totality. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Sentencing Act).
I am also required to indicate the sentences that I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A(2)(b) Sentencing Act).
In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.
In arriving at both the indicative sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].

Indicative Sentences

The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223 at [49]) and are as follows: Count Offence Indicative sentence 2 Indecent assault 12 months 4 Sexual intercourse without consent 4 years

WS, stand, 1. You are sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months. 2. I direct that such a term of imprisonment shall commence on 1 April 2021 and that the non-parole period shall expire on 30 September 2023, with the balance to expire on 30 June 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2021

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